Opinion
C/A 4:23-5280-SAL-TER
05-01-2024
ARYEE HENDERSON, Plaintiff, v. NURSE SCOTT AND NURSE GREGG, Defendant.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III, UNITED STATES MAGISTRATE JUDGE
PROCEDURAL BACKGROUND
Plaintiff, a prisoner proceeding pro se, filed this action under 42 U.S.C. § 1983on October 23, 2023, alleging a violation of his constitutional rights. Plaintiff is currently housed at the Lee Correctional Institution. On January 17, 2024, Defendant Scott filed a motion to dismiss pursuant to Rule 12(b)(6) and 12(b)(5) in conjunction with a memorandum in support. (ECF No. 20). As the Plaintiff is proceeding pro se, the court issued an order on or about January 19, 2024, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the motion to dismiss procedure and the possible consequences if he failed to respond adequately. Plaintiff failed to file a response. After issuing a Report and Recommendation recommending that this action be dismissed against Defendant Scott for failure to prosecute, Plaintiff filed objections and responses. (See ECF Nos. 30, 32). Therefore, the district judge did not accept the report and recommendation but allowed Plaintiff to file his response and objections and recommitted the matter to the undersigned for consideration of Defendant Scott's motion to dismiss. (See ECF No. 43).
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. Because this is a dispositive motion, the report and recommendation is entered for review by the district judge.
STANDARD FOR MOTION TO DISMISS
This matter is before the court on Defendant Scott's motion to dismiss pursuant to Rules 12(b)(5) and (6) of the Federal Rules of Civil Procedure. Under Rule 12(b)(6) of the Fed.R.Civ.P., “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Lokhova v. Halper, 995 F.3d 134, 141 (4th Cir. 2021) quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). “Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.' ” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Under Federal Rule of Civil Procedure 12(b)(5), a defendant may challenge the sufficiency of service of process. “A Rule 12(b)(5) motion is a proper means of raising any procedural defense related to service.” Wilson v. Kenny, 941 F.2d 1208 (4th Cir. 1991). A United States district court can grant a defendant's Rule 12(b)(5) motion to dismiss if the district court deems that there was insufficient service of process. See Hyman v. City of Gastonia, 466 F.3d 284, 286 (4th Cir. 2006). Once the defendant challenges service, “[t]he plaintiff bears the burden of establishing that service of process has been accomplished in a manner that complies with Rule 4” of the Federal Rules of Civil Procedure. Plant Genetic Sys., N.V. v. Ciba Seeds, 933 F.Supp. 519, 526 (M.D. N.C. 1996); see Hickory, 213 F.R.D. at 551. Rule 4 is “there to be followed, and plain requirements for the means of effecting service of process may not be ignored.” Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984).
ANALYSIS
Defendant Scott has challenged service filing a motion to dismiss pursuant to Rule 12(b)(5). Therefore, as a preliminary matter in this case, it is necessary for this court to address this service issue concerning Defendant Scott.
By Order dated October 31, 2023, Plaintiff was ordered to, among other things, complete one summons for each defendant named and “provide complete name and a full street address where Defendant(s) can be served” and to “complete, sign and return a separate Form USM-285 for each Defendant listed in this case. . .” (ECF No. 5). Plaintiff substantially complied with the court's order. By Order dated November 15, 2023, Plaintiff's motion for leave to proceed in forma pauperis was granted (ECF No. 12) and an order authorizing service of process was issued (ECF No. 11). In this order, the U.S. Marshal Service (USM) was directed to serve Defendant Scott directing the UMS to “. . . expend reasonable investigative effort to locate a defendant once a defendant is properly identified If the information provided by Plaintiff on the Form(s) USM-285 is not sufficient for the Marshal to effect service of process, after reasonable investigative efforts have been made to locate a properly identified Defendant, the Marshal should so note in the ‘Remarks' section at the bottom of the Form USM-285.” (ECF No. 11 at 2). The USM filed a return as to Defendant Nurse Scott on January 12, 2024, indicating execution of serve on Defendant Scott.
Defendant Scott has filed a motion to dismiss pursuant to Rule 12(b)(5) arguing that Plaintiff has failed to properly serve him with a valid summons and complaint. Rule 4(e), FRCP provides that “an individual may be served by delivering a copy of the summons and complaint to the individual, by leaving it at their dwelling or usual place of abode with someone of suitable age and discretion, or by delivering the summons and complaint to an agent authorized by appointment or by law to receive service of process.” The Process Receipt and Return completed by the USMS indicates service of the Summons and Complaint was personally made on “Silva Verduzco (HR Coordinator).” (ECF No. 18). Defendant Scott argues that the service address listed in the Receipt and Return is “not this Defendant's personal address and Defendant never authorized the HR coordinator to accept service of any legal document on his behalf. Defendant was never personally served with the Summons and Complaint. Thus, Plaintiff has failed to comply with the service rules and the complaint must be dismissed pursuant to Rule 12(b)(5).” (ECF No. 20 at 5).
“Dismissal of an action against a defendant under Rule 12(b)(5) for insufficiency of service is within the discretion of the court” and will not necessarily be granted where there is no prejudice to the defendant and proper service is likely to be accomplished. Argot v. Harden, No. 4:11-2755-MBS-TER, 2012 WL 6839310, at *5 (D.S.C. Sept. 27, 2012)(unpublished); see also Cellular Sales of Knoxville, Inc. v. Chapman, 2020 WL 32992, at *3 (M.D. N.C. Jan. 2, 2020). Further, “[w]hen there is actual notice, every technical violation of the rule or failure of strict compliance may not invalidate the service of process.” Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984). Absent prejudice to the defendant and when service can be accomplished, courts generally will quash the insufficient service and allow a plaintiff to perfect service through the Marshal. See Argot, supra.
As previously stated, Plaintiff has been granted in forma pauperis status in this case, so Plaintiff relies on the Marshal to effectuate service of process. The USM must expend a reasonable investigative effort to locate a defendant once the defendant is properly identified. In the motion to dismiss, Defendant Scott did not show how he would be prejudiced by quashing the insufficient service or why service should not be perfected now. Therefore, Defendant Scott's motion to dismiss pursuant to Rule 12(b)(5) should be denied, with service to be perfected by the USM.
CONCLUSION
Based on the above reasoning, it is RECOMMENDED that Defendant Scott's motion to dismiss (ECF No. 20) pursuant to Rule 12(b)(5) be DENIED and Defendant Scott's motion to dismiss pursuant to Rule 12(b)(6) be deemed MOOT. Additionally, Counsel for Defendant Scott should advise the Court in writing within the time period for filing objections to this Report and Recommendation as to whether he is authorized to accept service on behalf of Defendant Scott and/or waive service pursuant to Rule 4, FRCP. If defense counsel advises the Court that he is not so authorized, then a separate order should be issued directing the USM to serve Defendant Scott pursuant to the Rules of Civil Procedure.